TEXAS PROTECTS NEWSPAPERS

By G. Romero Wendorf

I like to joke that occasionally -- between laughs, dinner and cocktail visits with lobbyists and moneyed interests -- state reps and state senators, and even the governor, get something right. In other words, even a blind squirrel occasionally finds a nut.

And four years ago, the governor and the Texas Legislature did indeed get something right when they passed the Texas Citizens Participation Act, commonly referred to as the “Texas Anti-SLAPP statute.”

In 2011, even Rick Perry, God bless him, (this is before he was wearing his gravitas glasses) managed to get that one thing right. 

SLAPP, by the way, is an acronym for Strategic Lawsuit Against Public Participation. Over the years, it’s been used by politicians and public figure and huge corporations as a tool to intimidate newspapers in particular, and the media in general, as well as regular citizens from speaking out against perceived wrongs.

The threat of a lawsuit can have a chilling effect on people and/or news organizations.

Granted the same gang that couldn’t shoot straight (albeit W was guv when this happened) screwed up big time in 2003 when Texas tort (lawsuit) reformers scared voters into passing medical malpractice reform by a statewide vote of 51 percent to 49 percent, thereby capping punitive damages at $250k. In fact, I can still see the signs around the county courthouse: Hidalgo County is losing our doctors, so pass Prop 12.

It was the scare tactic that did the trick. After all, who wants to be short of doctors? Especially when good ones are hard to find.But while this scare tactic was going on in 2003, I was looking around Hidalgo County, watching all these new medical clinics being built, thinking, well, if we’re losing them, who’s building these new clinics? Are we shipping in docs from China?

After that, of course, my wife and I lost three out of four parents to medical incompetence of varying degrees, and as a result of Prop 12, had no legal recourse because of the $250k cap. Not that we wanted the money that bad. But we wanted the docs to pay for what they had done. Or had not done, as the case may be. But, hey, who holds grudges against the politicians and “pro-business” lobbyists who helped pass medical malpractice reform in Texas? If it can happen to our parents, it can happen to theirs, and only then will they perhaps see the error of their ways. Cap it if frivolous lawsuits are a problem, which some of them were. But $250k is way too small.

With regard to the Anti-SLAPP legislation, however, the gang that couldn’t shoot straight up in Austin actually did do something right – they passed a piece of legislation that not only protected newspapers against frivolous lawsuits, but the general public as well.

In fact, the Texas Anti-SLAPP statute is one of the strongest in the nation and shows the Lone Star State’s continued commitment to the First Amendment (free speech).

The law was passed in both chambers of the legislature by at least a two-thirds vote, which meant it took effect immediately in June 2011. Suddenly, the little guy, the little weekly newspaper, had less to fear for speaking the truth. Screw the public figure who had a problem with that.

So what did the Texas Citizens Participation Act do? This Anti-SLAPP Statute? Well, a couple of things. Here are some bullet points as laid out by www.slappedintexas.com, written by Laura Lee Prather:

• The statue allows a judge to dismiss frivolous lawsuits filedagainst one who speaks out about a “matter of public concern” within the first60 days.  “Matter of public concern” is define expansively in the statute.
• The Anti-SLAPP motion is supported by affidavit explaining to the court that the lawsuit is based on, relates to, or is in response to one’s exercise of his right to free speech, right to petition or right of association.
• The burden of proof is initially on the party who file the Anti-SLAPP motion to establish (by a preponderance of the evidence) that the lawsuit was filedin response to the exercise of his First Amendment rights.  Then the burden shifts to the plaintiff to establish (by clear and specifi evidence) a prima facie case for each essential element of the claim.
• The statute creates a stay of discovery in a lawsuit while an Anti-SLAPP motion is pending and/or appealed.  The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
• The statute provides for mandatory fee shifting when a party wins an Anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs.  There is a discretionary fee award if the Court find that the Anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
• The statute provides an immediate right to an expedited appeal if the Anti-SLAPP motion is denied.
• The statute applies to lawsuits or “legal actions” (which includes claims and counterclaims that implicate First Amendment rights) file on or after June 17, 2011.
• The exemptions contained in the statute are for enforcement actions brought by the State or law enforcement, for commercial speech and for wrongful death and bodily injury lawsuits.

So, basically, what this Anti-SLAPP statute does is provide protection for a newspaper or private citizen if a frivolous lawsuit is filed against them as an intimidation tool when it pertains to matters of public concern.

In other words, shut up, quit writing about me or talking about me and go away, even if I am a public official.

Sorry, but the bully boy’s legs were cut in 2011.

Plus, and here’s a big one, if the plaintiff loses, he or she has to pay the legal fees for the defense.

Meaning, even though the public figure may be upset over what’s been written or said about them, they’re going to think twice about filing a lawsuit, knowing that if they lose, they’re going to be out a big chunk of change.